The opinion of the court was delivered by: Honorable Dennis L. Beck United States Magistrate Judge
Dismissal of Probation Warrant
This memorandum is to request the Court vacate and recall the probation warrant issued for the defendant's arrest.
The Ninth Circuit Court of Appeals' decision in U.S. v. Vargas-Amaya, 389 F.3d 901 (2004) ruled that a district court's jurisdiction to revoke supervision beyond the term of supervision ordered, is extended if the warrant was issued "upon probable cause, supported by Oath or Affirmation," as required by the Fourth Amendment. On violation Petitions issued prior to 2004, there was no oath or affirmation in our documents; therefore, there was no oath or affirmation on this defendant's petition.
On December 14, 1993, the above defendant appeared before the United States Magistrate Court in the Central District of California (Docket Number 93-00302) for sentencing based on a Nolo Contendere plea to violation of 21 USC 844(a), Possession of a Controlled Substance. He was placed on probation for one year and the entry of judgment was deferred. The Court noted, if the defendant completed the term of probation without any violations of the conditions of supervision, the matter would be dismissed. In addition to standard conditions of probation, the Court ordered the defendant to complete 40 hours community service and drug/alcohol treatment and testing.
On November 29, 1994, the case was transferred to the Eastern District of California (Docket Number 1:MJ02464-001). On the same date, Your Honor issued a warrant for the defendant's arrest based on a Violation Petition submitted from the Central District of California probation office (dated November 21, 1994). The Petition alleges the following violations of probation: 1) Use of methamphetamine; 2) Failure to participate in drug treatment; and 3) Failing to report to the probation officer.
Based on the decision in U.S. v. Vargas-Amaya, it is recommended the Court recall the warrant and dismiss the case.
Respectfully submitted, Rick C. Louviere Assistant Deputy Chief U.S. Probation Officer
Fresno, California RCL:rcl
cc: United States District Court Clerk's Office
United States Marshals ...